December 22, 2005

Can Bush Be Trusted to Declare Someone an Enemy Combatant?

Obviously, we now know that Jose Padilla is not an enemy combatant because the DOJ has determined he can just be indicted under normal criminal, not terrorist charges. Even the hyper-conservative Judge Luttig was aghast at the thought that after insisting for almost three years Jose Padilla was such a bad actor that he had no right to habeas corpus nor access to the US legal system, now Bush's justice department had decided that he wasn't really a dangerous terrorist after all. So what does this say about the infallible nature of Bush's judgment of who should be declared an enemy combatant?

According to the Bybee torture memo (pdf), it was Bush and Bush alone who had authority to declare someone an enemy combatant and thus out of the reach of the legal system.

One of the core functions of the Commander in Chief is that of capturing, detaining and interrogating members of the enemy. [Sentence deleted] It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict, and the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength, and its plans. Numerous Presidents have ordered the capture, detention, and questioning of enemy combatants during virtually every major conflict in the Nation's history, including the recent conflicts such as the Gulf, Vietnam, and Korean wars. Recognizing this authority, Congress has never attempted to restrict or interfere with the President's authority on this score.

Yet, in the case of the two Americans (that we know about) who have been declared enemy combatants since 9/11, the DOJ decided that they had misclassified at least one of them - a failure rate of 50%. So how confident are we in letting this President have that much authority to lock someone up essentially forever on his say so?

As Michael Froomkin noted in April, the classification of 'enemy combatant' is a very expansive definition and potentially could include even a person who was seen talking to someone who was considered an enemy.

Second, as more fully described below, the document sets out a new and very broad definition of who is an “enemy combatant” — the class of persons the Administration claims are outside the protection of the Geneva Convention system, being neither soldier nor civilian (a better reading of the GC system, I’d argue, is that everyone is one or the other). According to the new definition, anyone who is a “affiliated” (what’s that mean?) with a group listed under Executive Order 13224 [i.e. in theory any group identified by Presidential order!] is a potential enemy combatant. That sweeps very broadly indeed.

How many Kafka-esque cases will it take before the Congress and the Courts decide that the President can't be trusted to make this type of life or death decision about people? It is time to put the kabosh on the imperial Presidency.